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Case l:12-cv-01167-EGS Document 1 Filed 07/17/12 Page 1 of 11 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



JENNIFER WENGER 
339 8 th STREET, NE 
WASHINGTON D.C. 20002, 

Plaintiff, 



v. 



DEPARTMENT OF JUSTICE 

950 PENNSYLVANIA, AVE., N.W. 

WASHINGTON, D.C. 20530 

Defendant. 



Civil Action No. 



COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 

1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as 
amended, challenging the failure of the Department of Justice's component the Federal Bureau 
of Investigation ("FBI") to adequately search for and respond to the request of Jennifer Wenger 
for records related to the disappearance of Ronald H. Tammen, Jr., from Fisher Hall, Miami 
University in Oxford Ohio on April 19, 1953 

2. This case seeks declaratory relief that the Department of Justice is in violation of the 
FOIA, 5 U.S.C. §§ 552(a) and (b), for failing to respond to plaintiffs request for records and 
injunctive relief ordering defendant to search for and process immediately the requested records 
in their entirety. 

JURISDICTION AND VENUE 

3. This Court has both subject matter jurisdiction over this action and personal 
jurisdiction over the Department of Justice pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also 



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has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 
U.S.C. § 552(a)(4)(B). 

PARTIES 

4. Plaintiff Jennifer Wenger is a citizen of the District of Columbia. Ms. Wenger is a 
writer currently working on a book about the disappearance of Ronald Tammen in 1953. This is 
Ms. Wenger' s first book. 

5. Defendant Department of Justice is an agency within the meaning of 5 U.S.C. § 552(f) 
and 5 U.S.C. § 702. The Department of Justice is the federal agency with possession and control 
of the requested records and is responsible for fulfilling plaintiffs FOIA request. The FBI is a 
component of the Department of Justice. 

STATUTORY FRAMEWORK 
The Freedom of Information Act 

6. The FOIA, 5 U.S.C. § 552, requires agencies of the federal government to release 
requested records to the public unless one or more specific statutory exemptions apply. 

7. An agency must respond to a party making a FOIA request within 20 working days, 
notifying that party of at least the agency's determination whether or not to fulfill the request and 
of the requester's right to appeal the agency's determination to the agency head. 5 U.S.C. 

§ 552(a)(6)(A)(i). 

8. In "unusual circumstances," an agency may delay its response to a FOIA request or 
appeal, but must provide notice and "the date on which a determination is expected to be 
dispatched." 5 U.S.C. § 552(a)(6)(B). Any such delay may not exceed an additional ten 
working days beyond the initial 20-working-day period mandated by the FOIA. Id. 



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9. An agency must produce all responsive records except to the extent they, or any 
portion thereof, fall into one of nine specified exemptions. 5 U.S.C. § 552(b). 

10. This Court has jurisdiction, upon receipt of a complaint, "to enjoin the agency from 
withholding agency records and to order the production of any agency records improperly 
withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). 

FACTS UNDERLYING PLAINTIFF'S PRAYER FOR RELIEF 

1 1. On April 19, 1953, Ronald H. Tammen, Jr., disappeared from his dormitory in Fisher 
Hall at Miami University in Oxford, Ohio. The FBI opened a Missing Person file on the 
disappearance. However, Mr. Tammen has never been located. 

12. Plaintiff Jennifer Wenger is currently researching a book on Mr. Tammen' s 
disappearance. As part of her investigation, Ms. Wenger has pursued the FOIA and other Open 
Record laws to locate material on Mr. Tammen' s disappearance. 

Plaintiffs FOIA Request 

13. On April 22, 2010, plaintiff submitted a FOIA request form by the FBI's electronic 
request portal for all records concerning the FBI's investigation of the Ronald H. Tammen, Jr., 
disappearance from Fisher Hall, Miami University, Oxford, Ohio, on April 19, 1953. 

14. By letter dated May 4, 2010, the FBI acknowledged plaintiffs request and assigned it 
FOIPA Request No. 1 147525-000. 

15. By letter dated August 2, 2010, the FBI advised that the request was currently being 
reviewed by an analyst. 

16. By letter dated November 2, 2010, the FBI advised that the request was still being 
reviewed by an analyst. 



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17. By letter dated December 21, 2010, the FBI released 23 pages of responsive material. 
Certain information was redacted pursuant to FOIA Exemptions 6 and 7(C). 

18. By electronic mail dated January 19, 201 1, plaintiff submitted three (3) FOIA 
requests to the FBI pertaining to Ronald Henry Tammen, Jr.. The first request sought material in 
FBI #358-406-B. The second request sought all material found in FBI file #79-31966. The third 
request sought material found in FBI file #25-381 754. All of these requests were for the book 
Ms. Wenger is writing on the disappearance of Mr. Tammen. 

19. By letter dated January 21, 201 1, the FBI responded to plaintiffs January 19, 201 1 
requests. These three (3) requests were aggregated and given FOIPA No. 1 160335-000. The FBI 
advised plaintiff that File Numbers 25-HQ-3817454, 25-CI-14261, and 25-CV-14170 had been 
destroyed on February 1, 1997, October 14, 1964 and an unknown date, respectively. The FBI 
also advised plaintiff that File Number 79-HQ-31966 was previously provided to her on 
December 21, 2010 and that FBI #358-406-B is Mr. Tammen' s criminal identification number, 
not an FBI file number. 

20. By letter dated January 24, 201 1, plaintiff appealed the FBI's actions of December 
21, 2010 and January 21, 2010 to the Department of Justice's Office of Information Policy 
("OIP"). Plaintiffs appeal concerned the fact that there should be additional documents 
concerning the investigation; including a document signed by J. Edgar Hoover instructing agents 
to stop searching for Mr. Tammen. 

21. By letters dated February 16, 201 1, the June 20, 201 1, OIP acknowledged receipt of 
plaintiffs appeals assigned them Appeal Numbers AP-201 1-01083 and AP-201 1-01084. 



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22. By letter dated August 4, 201 1, OIP remanded plaintiffs first request of April 22, 
2010 (Request No. 1 147525) back to the FBI for the processing of additional records. OIP 
affirmed the remaining actions of the FBI's on the two requests. 

23. By letter dated April 9, 201 1, plaintiff made a request to the FBI for records 
concerning Lyndal Ashby, William Arnold and Raymond Harris. All three were missing persons 
who disappeared in the Midwest. 

24. By letter dated April 14, 201 1, the FBI assigned the request for records on the 
investigation of the disappearance of William Arnold FOIPA Request No. 1 164555. The FBI 
further stated that as plaintiff requested records concerning a third party these records are exempt 
from the FOIA without an express authorization and consent of the third party, proof that the 
subject of the request is deceased or a clear demonstration that the public interest in disclosure 
outweigh the personal privacy interest and that significant public benefit would result from the 
disclosure of the requested records. The FBI exempted these records from disclosure pursuant to 
FOIA Exemptions 6 and 7(C). 

25. By letter dated April 14, 201 1, the FBI assigned the request for records on the 
investigation of the disappearance of Raymond Harris FOIPA Request No. 1 164556. The FBI 
further stated that as plaintiff requested records concerning a third party these records are exempt 
from the FOIA without an express authorization and consent of the third party, proof that the 
subject of the request is deceased or a clear demonstration that the public interest in disclosure 
outweigh the personal privacy interest and that significant public benefit would result from the 
disclosure of the requested records. The FBI exempted these records from disclosure pursuant to 
FOIA Exemptions 6 and 7(C). 



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26. By letter dated April 20, 201 1, plaintiff appealed the FBI's actions on FOIPA 
requests No. 1 164555-000 and No. 1 164556-000. 

27. By letter dated May 2, 201 1 , OIP acknowledged plaintiffs appeals on FOIPA 
requests No. 1 164555-000 and No. 1 164556-000. OIP assigned Appeal No. AP-201 1-01813 to 
Request No. 1 16455 and Appeal No. AP-201 1001814 to Request No. 1164556. 

28. By letter dated May 3, 201 1, the FBI acknowledged plaintiffs April 9, 201 1 request 
for records on Lyndal Ashby and assigned it FOIPA Request No. 1 154553-000. 

29. By letter dated May 31, 201 1, the FBI released eight (8) pages of responsive records 
concerning the disappearance of Lyndal Ashby on FOIPA Request No. 1 154553-000. Certain 
information on these pages was withheld pursuant to FOIA Exemptions 6 and 7(C). 

30. By letter dated September 6, 201 1, OIP affirmed the FBI's action on plaintiffs 
request for material pertaining to William Arnold (FOIPA Request No. 1 164555). 

3 1 . By letter dated September 6, 201 1 , OIP affirmed the FBI's action on plaintiffs 
request for material pertaining to Raymond Harris (FOIPA Request No. 1 164556). 

32. By letter dated June 21, 201 1, the FBI released nine (9) additional pages pertaining 
to the disappearance of Ronald Tammen. Certain information was withheld pursuant to FOIA 
Exemptions 6 and 7(C). 

33. By letter dated September 10, 201 1, plaintiff sought mediation of her request form 
the Office of Government Information Services ("OGIS"). Ms. Wenger's letter sought 
assistance in the locating and processing of additional records concerning Tammen' s 
disappearance as well as records on William Arnold and Raymond Harris. 

34. By letter dated September 20, 201 1, OGIS acknowledged plaintiffs facilitation 
request and sent her an authorization form, which she immediately signed and returned. 



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35. By email dated October 4, 201 1, Karen Finnegan of OGIS provided plaintiff with 
information about her request. Ms. Finnegan stated, among other things, that pursuant to a 
conversation with FBI FOIA Public Liaison Dennis Argall she learned that "[t]he FBI released 
information pertaining to Mr. Tammen because over the years the FBI had contact with his 
family who indicated that they believed Mr. Tammen to be deceased given some suspicious 
facts, namely, that after his disappearance a fish was found in his college bed." 

36. Plaintiff had not received any documents from the FBI about this incident and 
because she had knowledge that it was a prank, did not feel that it was exempt from disclosure, 
according to the law. In order to make sure that she covered every possible situation, plaintiff, by 
e-mail dated January 18, 2012, to the FBI, requested all the files from the Cincinnati and 
Cleveland Field Offices concerning the disappearance of Mr. Tammen. This was to make sure 
that the FBI had searched those offices in her previous requests as the correspondence for those 
requests did not indicate what offices the FBI searched for responsive records. 

37. By letter dated January 18, 2012, the Chief Division Counsel for the FBI's Cleveland 
Field Office informed plaintiff that all FOIPA requests are now processed through the FBI 
central location in Winchester, Virginia and that office would soon contact her concerning her 
request. 

38. By letter dated January 20, 2012, the FBI assigned FOIPA Request No. 1 180818-000 
to plaintiffs request and indicated that no records could be located. 

39. By letter dated January 26, 2012, the FBI assigned FOIA Request No. 1 180815-000 
to plaintiffs request for Cincinnati and Cleveland Field Office files. 

40. By letter dated January 26, 2012, the FBI stated that they had previously advised 
plaintiff that Cincinnati Field Office file 25-CI- 14261 and Cleveland Field Office file 25-CV- 



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14170 had been destroyed. The FBI further advised plaintiff that no further records responsive 
to her request could be located. 

41. By email to the FBI dated January 29, 2012, plaintiff asked the FBI about the "fish in 
the bed comment." Plaintiff sought the records of the FBI that contained this information in light 
of the fact that plaintiff was aware that an actual fish was found in Mr. Tammen's bed after his 
disappearance. 

42. On February 15, 2012, FOIA Public Liaison Dennis Argall contacted plaintiff. Mr. 
Argall stated that his fish statement to OGIS was meant as a joke and there is nothing concerning 
the fish in the FBI files. 

43. In May of 2012, Ms. Wenger received documents from the Butler County (Ohio) 
SherrifP s Office. Included in these documents was one from the FBI dated February 28, 2008. 
This document was not included in the FBI's release of documents to Ms. Wenger. The 
February 28, 2008 document is attached as Exhibit 1. 

PLAINTIFFS CLAIMS FOR RELIEF 

CLAIM ONE 
(Failure to Produce Records) 

44. Plaintiff re-alleges and incorporates by reference all preceding paragraphs. 

45. Plaintiff properly asked for records within the custody and control of the FBI. 

46. Plaintiff is entitled by law to access to the records requested under the FOIA, unless 
defendant makes an explicit and justified statutory exemption claim. 

47. Plaintiff has exhausted administrative remedies with respect to the FBI's wrongful 
withholding of the requested records. 

48. Plaintiff is entitled to injunctive and declaratory relief with respect to the release and 
disclosure of the requested documents. 

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PRAYER FOR RELIEF 



WHEREFORE, plaintiff respectfully requests that this Court: 

(1) Issue a declaration that defendant FBI has violated the FOIA by failing to lawfully 
satisfy plaintiffs FOIA request of June 13, 201 1; 

(2) Order defendant FBI to search for and process immediately the requested records in 
their entirety at no cost to plaintiff; 

(3) Order defendant FBI upon completion of such processing to disclose the requested 
records and make copies available to plaintiff at no cost to plaintiff; 

(4) Award plaintiff reasonable attorney fees and litigation costs in this action pursuant to 



5 U.S.C. § 552(a)(4)(E); and 

(5) Grant such other and further relief as the Court may deem just and proper. 



Respectfully submitted, 




Scott A. Hodes (D.C. Bar 430375) 
P.O. Box 42002 
Washington, D.C. 20015 
Phone: (301) 404-0502 
Fax: (413) 641-2833 



Dated: July 17, 2012 



Attorney for Plaintiff 



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Exhibit 1 



Wenger v. Department 

of Justice 



Case l:12-cv-01167-EGS Document 1 Filed 07/17/12 Page 11 of 11 



JOO'd T.V1QA 



FEDERAL BUREAU OF INVESTIGATION 
U.S. DEPARTMENT OF JUSTICE 
CLARKSBURG, WV 




FACSIMILE COVER SHEET 

Date: Thursday, February 28, 2008 

TO: 

SHERIFF'S OFFICE 
HAMILTON, OH 
ATTN: 

SPECIALIST FJ SMITH 



FROM: OCFBIWAD2 
FBI 

SPECIAL PROCESSING CENTER - MODULE E-2 
1000 CUSTER HOLLOW ROAD 
CLARKSBURG, WV 26306 



PHONE: 304-626-5584 (24 HOUR - VOICE) 

304-625-5687 (24 HOUR - AUTO FAX) 

NUMBER OF PAGES INCLUDING COVER SHEET- 
SUBJECT: TAMMEN, RONALD HENRY 
COMMENTS ; SPECIAL INSTRUCTIONS: 

A SEARCH OF OUR CRIMINAL AND CIVIL FILES HAS FAILED TO REVEAL ANY 
FINGERPRINTS FOR YOUR SUBJECT. A COMPLETE SEARCH OF OUR ARCHIVE 
MICROFILM FILES HAS FAILED TO REVEAL ANY FINGERPRINTS FOR THIS 
MISSING SUBJECT AS WELL. 

AUTHORIZATION: KJD/JLW;CTPE 



CONFIDENTIALITY NOTICE 

This facsimile transmission mey contain confidential information belonging to th# sender which is protected by law. The 
information Is intended only for the use of the recipient named above. If you are not the intended recipient, you are hereby 
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